The South African Class Action vs Group Action as an appropriate procedural device
| Jurisdiction | South Africa |
| Date | 21 June 2019 |
| Pages | 6-32 |
| Citation | (2019) 30 Stell LR 6 |
| Published date | 21 June 2019 |
| Author | Theo Broodryk |
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THE SOUTH AFRICAN CLASS ACTION VS
GROUP ACTION AS AN APPROPRIATE
PROCEDURAL DEVICE
Theo Broodryk
BA LLB LLD (Stell)
Senior Lecturer and Manager: Law Clinic, Stellenbosch University
1 Introduction
The certication requirements set out in the judgment of Wallis JA i n
Trustees for the time being of the Children’s Resource Centre Trust v Pioneer
Food (Pty) Ltd (Legal Resources Cent re as amicus curiae) (“Children’s
Resource Centre Trust”)1 include that there must be a class, identiable
by objective criteria, and it must be show n that a class action is the most
appropriate means of adjudicat ing the claims of the class members.2 A proper
class den ition inter alia enables the cour t to deter mine how notication to
the putative class members should be given, to de cide who does not form part
of the class and may accordingly in stitute individual a ctions, and to establish
who will be bound by the cour t’s order.3 The requirement that a class action
must be appropriate is, accor ding to Erasmus and Van Loggerenberg, aimed at
ensuring t hat only claims that cannot feasibly be institut ed as ordinary actions
with multiple plaintiffs are broug ht as class actions.4
In Children’s Resourc e Centre Trust, after having listed t he certication
requirements,5 Wallis JA proceeded to deal selectively with some of the
requirements in more detail. He did not con sider separ ately the certi cation
requirement that a class action must be shown to be the most appropriate
means of determi ning class members’ claims. Inst ead, he essentially dealt
with this requirement in the context of the rst cer tication requirement,
namely that there must be a class, identiable by objective criter ia. In this
regard, Wallis JA mentioned obiter that:
“In dening the class it is not necessary to identify all the members of the class. Indeed, if that were
possible, there would be a question whether a class action was necessary, as joinder under Uniform
Rule 10 would be permissible. It is, however, necessary that the class be dened with sufcient
precision that a particular individual’s membership can be objectively determined by examining their
situation in the light of the class denition.”6
It can be inferred f rom Wallis JA’s obiter dictum that, where a ll the claimants
are ide ntiable,7 they may need to be joined as plaintiffs to the procee dings.
1 2013 1 All SA 648 (SCA).
2 Para 26.
3 HJ Erasmus & DE va n Loggerenberg Era smus: Superior Co urt Practice (RS 41 2013) A2-23.
4 A2-25.
5 2013 1 All SA 648 (SCA) para 26.
6 Par a 29.
7 In the sense t hat the individua l claimants can be n amed and specif ied.
(2019) 30 Stell LR 6
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A class action may therefore not be the appropriat e procedural device to be
utilised in such circu mstances. Wallis JA does, however, forgo saying that a
class action may never be used if the claim ants are all personally identiable.
In fact, Wallis JA mentions that there is a measu re of overlap between the
certication requirements8 and he also refers to the circumsta nces when a
class action may be instit uted in South Africa,9 such as where t he class is large,
where the class members are po or, and where the claims are not substant ial
enough to be pursued se parately.10
As mentioned, Wallis JA did not expressly deal with the certication
requirement that a class action must be shown t o be the most appropriate
means of determi ning class members’ claims. He also state d that it is
unnecessar y to identify all t he class members; otherwise, t he necessity of a
class act ion would be questionable. It accordingly remai ns unclear when, if
at all, t he identiability of class members will preclude the certication of a
class action. Moreover, it is unclear what the test is our cou rts must apply and
what factors they must consider to det ermine the appr opriateness of a class
action.
In Mukaddam v Pioneer Foods (Pty) Ltd (“Mukaddam SCA”)11 the class
action had been fr amed in an opt-in manne r. This meant that the class would
have been conned to t hose ind ividuals who took the nece ssary steps to
opt into the class action. Nugent JA held that a class action was not suita ble
in casu. He held that once the class is con ned to claimants who choose
positively to adva nce their claims and are required to come forward for that
purpose, he could see no re ason why they are not capable of doing so in their
own names – they do not need a repre sentative to do so on their behalf. He
then stated that the court rules make specic provision for multiple plaintiffs
to join in one action.12 The court i n Mukkadam SCA the refore found, at the
expense of the opt-in class action regime, joinde r to be the more appropriate
procedural device.
A potential problem evidenced by the approach of the cou rt in Mukaddam
SCA is that where, for example, the individua l claimants are poor, uneducated,
and lack access to resou rces, or where the class is large, joinder may in fact be
cumbersome and inap propriate, even though all the clai mants are personal ly
identiable.13 This potential problem is sig nicant in that a court ordering
joinder in such circumst ances could potentially u ndermine the rat ionale
8 Para 26.
9 Paras 19-22.
10 Par a 19.
12 Para 12. Rule 10(1) of the Rules Regu lating the Conduc t of the Proceedin gs of the Several Provi ncial and
Local Division s of the High Court of Sou th Africa allows joi nder of multiple plaint iffs in a single act ion.
13 According to E rasmus & Van Loggerenberg Erasm us: Superior Court Pract ice A2-21, the traditional
rules gover ning joinder may be imprac tical where the claimants c omprise a large group and /or all the
potential cla imants have not yet been id entified.
CLASS ACTION VS GROUP ACTION AS A PROCEDURAL DEVICE
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